General Counsel Memo On Withdrawal of Recognition

General Counsel Memo 09-04 (Nov. 26, 2008), updates the standards with respect to withdrawals of recognition after Levitz.  Under Levitz, a withdrawal of recognition is only lawful if the employer can demonstrate that the union in fact lost its majority support. This Memo provides in part:

In Levitz, the Board ruled that an employer may
lawfully withdraw recognition from an incumbent union only
if it can prove that the union has actually lost majority
support.1 An employer that withdraws recognition bears the
initial burden of proving that the incumbent union suffered
a valid, untainted numerical loss of its majority status.
The employer can establish this loss by a variety of
objective means, including an antiunion petition signed by
a majority of the unit employees. In appropriate cases,
the General Counsel may then present rebuttal evidence to
show that the union in fact enjoyed majority support at the
time of the withdrawal or that the employer's evidence is
unreliable. The burden then shifts back to the employer to
establish actual loss of majority status by a preponderance
of all objective evidence.

Mitchell H. Rubinstein